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TMI Blog1999 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(a) of HMG Act and section 19(b) of the GW Act. Hence, the Reserve Bank of India was not right in insisting upon an application signed by the father or an order of the court in order to open a deposit account in the name of the minor particularly when there was already a letter jointly written by both petitioners evidencing their mutual agreement. The Reserve Bank now ought to accept the application filed by the mother. We are conscious of the fact that till now many transactions may have been invalidated on the ground that the mother is not a natural guardian, when the father is alive. Those issues cannot be permitted to be reopened. - - - - - Dated:- 17-2-1999 - Judge(s) : DR. A. S. ANAND., M. SRINIVASAN., UMESH C. BANERJEE JUDGMENT [DR. A. S. ANAND C. J. I. delivered judgment on behalf of himself and M. SRINIVASAN J. U. C. BANERJEE J. delivered a separate concurring judgment.] DR. A. S. ANAND C. J. I.---We have had the advantage of reading the draft judgment of our learned brother Banerjee J. While agreeing with the conclusion, we wish to add our own reasons. The facts in W. P. (C) No. 489 of 1995 are shortly as follows : The first petitioner is the wife of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor and no decision should be taken without his permission. The petitioner has in turn filed an application for maintenance for herself and the minor son. She has filed the writ petition for striking down section 6(a) of the HMG Act and section 19(b) of the GW Act as violative of articles 14 and 15 of the Constitution. Since challenge to the constitutionality of section 6(a) of the HMG Act and section 19(b) of the GW Act was common in both cases, the writ petitions were heard together. The main contention of Ms. Indira Jai Singh, learned senior counsel for the petitioners, is that the two sections, i.e., section 6(a) of the HMG Act and section 19(b) of the GW Act are violative of the equality clause of the Constitution, inasmuch as the mother of the minor is relegated to an inferior position on ground of sex alone since her right, as a natural guardian of the minor, is made cognisable only "after" the father. Hence, according to learned counsel, both the sections must be struck down as unconstitutional. Section 6 of the HMG Act reads as follows: "The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excludin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of section 6(a). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his life time. Is that the correct way of understanding the section and does the word "after" in the section mean only "after the lifetime" ? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did Parliament intend to transgress the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng his minority when his father was alive was not valid. However, the Tehsildar took the view that it could be considered as a lease created after April 1, 1957, and therefore, the tenant could be dislodged. The application was granted on that ground. On appeal, the appellate authority and in further revision, the Tribunal confirmed the findings. The aggrieved tenant filed a writ petition under article 227 of the Constitution challenging the said orders. The High Court held that the lease was valid on the ground that the mother was the natural guardian because the father was not taking any interest in his minor daughter's affairs and refused to grant the relief of possession but held that the appellant was entitled to resume a portion of the land leased for personal cultivation. Consequently, the matter was remanded. That judgment of the High Court was challenged in this court. The Division Bench of this court found that it was the mother who was actually managing the affairs of her minor daughter who was under her care and protection and though the father was alive, he was not taking any interest in the affairs of the minor. In the words of the Bench: "We have already referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission of the court was void. The appellant relied heavily on the fact that the sale deed was attested by the father of the respondents and contended that it should be deemed to be a sale validly made by the legal guardian of the respondents. It was also argued that the sale was for legal necessity as well as for the benefit of the respondents. The trial court found that there was no reliable evidence on record to show that the sale was made for legal necessity or for the benefit of the respondents and having been effected without the permission of the court was voidable. Ultimately the trial court held the same to be void and granted a decree as prayed for by the respondents. That was affirmed by the District Court and the High Court. In this court the Division Bench observed that in view of the concurrent findings, the sale was in any event voidable. Dealing with the question whether the sale could be considered to have been effected by (the father) natural guardian of the minors, (though actually made by the mother) because the father had attested the sale deed, the court referred to the judgment in Jijabai Vithalrao Gajre v. Pathankhan [1970] 2 SCC 717 ; AIR 1971 SC 315 and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court. It is, thus, evident from the two paragraphs extracted above, that the conclusion in Panni Lal v. Rajinder Singh [1993] 4 SCC 38 turned mainly on the fact that the sale was not supported by legal necessity ; was not for the benefit of the minor and the same had been effected without the permission of the court. That judgment, therefore, does not run counter to the interpretation now placed by us on section 6, as that case was decided on its peculiar facts and is clearly distinguishable. The message of international instruments---Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ("CEDAW") and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. India is a signatory to the CEDAW having accepted and ratified it in June, 1993. The interpretation that we have placed on section 6(a) gives effect to the principles contained in these instruments. The domestic courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them. [See with advantage---Apparel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid manner but without any order as to costs. BANERJEE J.---Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restricted to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and proclaimed by the General Assembly in its resolution No. 217A(III)] provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and the ratification of the Convention for Elimination of all Forms of Discrimination against Women (for short "CEDAW") by the United Nations Organisation in 1979, and subsequent acceptance and ratification by India in June, 1993, also amply demonstrate the same. We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in the welfare and benefit of the child excepting, however, claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this court under article 32 of the Constitution praying for declaration of the provisions of section 6(a) of the Act read with section 19(b) of the Guardian and Wards Act, as violative of articles 14 and 15 of the Constitution. Since challenge to the constitutionality of section 6 of the Act is involved in both the matters, the petitions were heard together. Ms. Indira Jaisingh, appearing in support of the petitions, strongly contended that the provisions of section 6 of the Act seriously disadvantage women and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children. It has been contended that on a true and proper interpretation of section 4 and the various provisions thereunder and having due regard to the legislative intent, which is otherwise explicit, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f their minor children, male or female, except, however, that the husband is the natural guardian of his wife howsoever young she might be and the adoptive father being the natural guardian of the adopted son. The law however provided that upon the death of the father and in the event of there being no testamentary guardian appointed by the father, the mother succeeds to the natural guardianship of the person and separate property of their minor children. Conceptually, this guardianship however is in the nature of a sacred trust and the guardian cannot, therefore, during his lifetime substitute another person to be the guardian in his place though however entrustment of the custody of the child for education or purposes allied may be effected temporarily with a power to revoke at the option of the guardian. The codification of this law pertaining to guardianship however brought about certain changes in regard thereto, to which we will presently refer, but it is interesting to note that prior to the enactment, the law recognised both de facto and de jure guardian of a minor. A guardian de facto implying thereby one who has taken upon himself the guardianship of a minor---whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mother's lap in one form of religion, it would not, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these". The English law, therefore, has been consistent with the concept of welfare theory of the child. The Indian law also does not make any departure, therefrom. In this context, reference may be made to the decision of this court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared as a natural guardian or have the father as a preferred guardian ? Ms. Indira Jaisingh answers it with an emphatic "no" and contended that the statute in question covering this aspect of the personal law has used the expression "after" in section 6(a) but the same cannot run counter to the constitutional safeguards of gender justice and as such cannot but be termed to be void and ultra vires the Constitution. Be it noted here that the expressions "guardian" and "natural guardian" have been given statutory meanings as appears from section 4(b) wherein guardian is said to mean a person having the care of the person of a minor or his property and includes: (i) natural guardian ; (ii) a guardian appointed by the will of the minor's father or mother; (iii) a guardian appointed or declared by court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards ; It is pertinent to note that sub-section (c) of section 4 provides that a natural guardian means a guardian mentioned in section 6. This definition section, however, obviously in accordance with the rule of interpretation of statutes, ought to be read subject to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfare concept had its due recognition. There is yet another decision of this court in the case of Panni Lal v. Rajinder Singh [1993] 4 SCC 38 wherein the earlier decision in Jijabai Vithalrao Gajre's case [1970] 2 SCC 717 ; AIR 1971 SC 315 was noted but in our view Panni Lal's case [1993] 4 SCC 38 does not lend any assistance in the matter in issue and since the decision pertains to protection of the properties of a minor. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular section 6 of the Act of 1956, it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within their jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in section 6 in a slightly greater detail. The word "guardian" and the meaning attributed to it by the Legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word "after" shall have to be interpreted in terms of the constitutional safeguard and guarantee so as to give a proper and effective meaning to the words used. In our opinion the word "after" shall have to be given a meaning which would subserve the need of the situation, viz., welfare of the minor and having due regard to the factum that the law courts endeavour to retain the legislation rather than declaring it to be void, we do feel it expedient to record that the word "after" does not necessarily mean after the death of the father, on the contrary, it depicts an intent so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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